Monday, April 29, 2013

The Supreme Court was too casual in its ruling on presidential petition

In Summary

A clear reading of the terms of the order and the eventual reports of the scrutiny and re-tallying, including what register ought to have been used for the purpose, shows massive discrepancy. Such failure of the court to observe its own orders without any explanation comes across as casual.

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By ONGOYA Z. ELISHA

On March 30, the Supreme Court delivered a unanimous decision in what had been billed as “the most important case of our time”. This was the very last day in which the court had, in law, to decide the matter.

The court then ordered that “the detailed judgment containing the reasons for the decision of the court will be issued within two weeks from today”. This latter aspect was part of the orders of the court.

On April 16, the sixteenth day from the date of the decision, the court sat to deliver the decision. No explanation was given for the delivery outside the timelines set by the same court. This omission, to an observer of the Judiciary’s recent investment in courtesy, was telling. It was too casual.

The practice of court is that it summons parties in open court as it did, it reads its judgment, dates and signs it. Again, the judgment was never read. The Chief Justice pronounced the manner in which the decision was to be disseminated and the process ended up being a witnessing of the “signing ceremony” of the decision. This, again, was too casual.

Certain snippets from the judgment would give us the degree of seriousness with which the judges treated the matter before them.

One of the instruments for implementation of the mandate of the Supreme Court is the Supreme Court Act. A detailed inquiry of the soundness or otherwise of the decision of the court in this matter should be reflected against this very sound statutory objective.

A reading of the judgment reveals lots of internal inconsistencies in the reasoning. I have selected a few aspects for this contention.

On the question of whether the rejected votes ought to have been included in determining the final tally of votes in favour of each of the presidential candidates by the IEBC, the court restated the express provisions of article 138 of the Constitution which requires that for a person to be declared president-elect, he or she must have received “more than half of all the votes cast in the election”.

The court then proceeded to reason thus at paragraph 260 of the judgment: “What are “all votes cast”? Do these include even the “rejected votes” which, of course, were cast? Or are they limited to the properly marked ballots which figured in the vote tally for the individual candidates?

From the above reasoning, it is apparent that the court had acknowledged that in respect of the so-called rejected votes, they “of course, were cast”. Yet the Constitution talks of “all votes cast”.

Against this background, the court concluded at paragraph 285 of the judgment that: “Taking into account the progressive character of the Constitution, and in particular, its declared national values and principles of governance, we hereby render the interpretation that the provision of Article 138(4) … refers only to valid votes cast, and does not include ballot papers, or votes cast but are later rejected for non-compliance with the terms of the governing law and regulations.” This of course begs the question, when are some “cast votes” not “votes cast”?

Another matter that will interest analysts in this case is whether the court ever complied with its own order on scrutiny and re-tallying of votes that it had made on its own motion in the matter.

A clear reading of the terms of the order and the eventual reports of the scrutiny and re-tallying, including what register ought to have been used for the purpose, shows massive discrepancy. Such failure of the court to observe its own orders without any explanation comes across as casual.

The court further found that from the 33,400 polling stations, only 18,000 polling stations were scrutinised. The question the court never answered was why the IEBC never availed the other 15,000 forms for scrutiny.

How verifiable were the results in light of the missing forms? Such lack of interrogation was casual on a number of aspects.

From the foregoing, it would appear that the judgment of the Supreme Court in Raila Odinga Vs The Independent Electoral and Boundaries Commission and Others, is a sad commentary.

It is a sad commentary on how not to evolve jurisprudence. It is a sad commentary on how not to entrench a culture of constitutional accountability in governance.

It is a bad example to subordinate courts. It is a sad commentary on how not to enhance to confidence of the citizens in the electoral system.

Mr Elisha is an advocate of the High Court of Kenya and a lecturer, Kabarak University’s School of Law.